We recently reported on the Ontario requirements relating to disconnecting from work, newly introduced under the Working for Workers Act 2021. Designed to address issues relating to work-life balance, the requirements force certain employers to prepare a written policy on disconnecting from work. 

The legislation doesn’t contain much detail, but the Ontario Ministry of Labour, Training and Skills Development has recently issued guidance on disconnecting from work policies, which provides some more information. This article reviews the new guidance. 

The legislation requires larger employers to have a written policy on disconnecting from work

The Working for Workers Act 2021 amended the Employment Standards Act 2000 (ESA) to insert a new Part requiring employers that employ 25 or more employees, on January 1 of any year, to have a written policy on disconnecting from work. 

The policy, which must be in place for all employees in Ontario, needs to be with respect to disconnecting from work. That phrase is defined as:

not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.

The legislation does not provide details of what the policy needs to contain, other than it must include the date the policy was prepared and the date any changes were made to the policy.

Normally, the policy must be in place before March 1. However, as a transitional measure for 2022, employers that meet the 25-employee threshold on January 1, 2022, have until June 2, 2022, to have a written policy in place. 

An employer must provide a copy of the written policy with respect to disconnecting from work to each employee within 30 days of preparing the policy or, if an existing written policy is changed, within 30 days of the changes being made. An employer shall also provide a copy of the policy to a new employee within 30 days of the day they become an employee.

The Government has recently issued guidance on disconnecting from work policies

The new guidance from the Ontario Ministry of Labour, Training and Skills Development sits as part of the guide to the ESA. It is for information and assistance only and is not a legal document. However, it could be persuasive in the interpretation of the ESA. 

Some of the key points in the guidance are mentioned below.

No new right for employees to disconnect from work

The guidance confirms that the new legislative requirements do not create a new right for employees to disconnect from work. Employee rights to not perform work are established through other ESA rules, such as those relating to hours of work and eating periods. The new obligation is for employers to have a written policy in certain circumstances.

Threshold of 25 or more employees

A policy is required if the employer employs 25 or more employees in Ontario on January 1 of any year. The guidance instructs employers to count the individual number of employees it employs on January 1 – the number of “full-time equivalents” is irrelevant. It is also irrelevant that employees may be split across multiple locations – a policy is required if 25 employees are employed, even if lower numbers are located at individual sites. If two or more employers are treated as one employer under the ESA, then all employees employed by the employers in Ontario are included in the count.

If the employer starts the calendar year with less than 25 employees, but later expands beyond this threshold in the same calendar year, a policy is not required until the next calendar year. On the other hand, if the employee count dips below 25 partway through the year, the employer is still obligated to have a policy in place. The obligation won’t apply in the next calendar year if the employee count remains below 25 on January 1.

If the policy does not change, the employer does not need to provide employees with a new copy each year.

Content of the disconnecting from work policy

The ESA does not specify the information that must be included in the policy. As such, the employer determines the content of the policy.

The guidance states that, although the policy needs to apply to all employees in Ontario, there does not need to be the same policy for all employees. It is possible to have different policies for different groups of employees, and this can be in a single document or in multiple documents. 

The guidance gives some examples of matters that may be addressed in the policy:

• The employer’s expectations, if any, of employees to read or reply to work-related emails or answer work-related phone calls after their shift is over.
• The policy may set out employer expectations for different situations. For example, … depending on:
  • the time of day of the communication
  • the subject matter of the communication
  • who is contacting the employee (for example the client, supervisor, colleague)
• The employer’s requirements for employees turning on out-of-office notifications and/or changing their voicemail messages, … to communicate that they will not be responding until the next scheduled work day.

If the policy is not followed

If the policy creates a greater right or benefit than an employment standard under the ESA, that right or benefit may be enforceable under the ESA, but if the policy does not do this, it is not enforceable under the ESA. 

Contact Haynes Law Firm in Toronto for Assistance with Employment Law Issues

Haynes Law Firm helps employers and employees throughout Ontario achieve effective solutions to legal issues and conflict management in employment law and civil litigation. Paulette Haynes of Haynes Law Firm can guide your organization through this developing area of the law. For example, if you require assistance drafting a policy on disconnecting from work or ensuring that your policy meets all applicable requirements, contact us online or call us at 416.593.2731.